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PETITIONER: ABDUL RAZAK HUSSEINSHABIR MOHMED SYED ETC.BALU @ JANARDAN SH

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       10/09/1997

BENCH: M. K. MUKHERJEE, K. T. THOMAS

ACT:

HEADNOTE:

JUDGMENT: Present:               Hon’ble Mr. Justice M.K. Mukherjee               Hon’ble Mr. Justice K.T. Thomas U.R. Lalit,    Sr. Adv.,     A.M. Khanwilkar,     Ms. Punam, D. Goburdhen,  MS. Pinky   Anand,  Shiv   Kumar   Suri   and S.M. Jadhav, Advs. with him for the appearing parties.                       J U D G M E N T The following Judgment of the Court was delivered: Shabir Mohamad Syed V. State of Maharashtra                             WITH               CRIMINAL APPEAL NO. 1137 OF 1995 Balu @ Janardan Shantaram Shirke V. State of Maharashtra                             WITH               CRIMINAL APPEAL NO. 615 OF 1997                       J U D G M E N T MUKHERJEE, J.      In Sessions  Case No.  122 of  1989 on  the file of the Additional  Sessions   Judge,  Fourth  Court,  Thane,  seven persons were  arraigned for  rioting, five murders and other related offences.  While acquitting  two of  them, the trial Judge convicted  the other five under Sections 147, 342/149, 440/34 and  302/149 I.P.C.  and sentenced  them to different terms of  imprisonment, including  life, and fine. Aggrieved thereby the  five convicts  (who were arrayed as A1 to A5 in the trial  Court) preferred  appeals in the High Court which were dismissed.  Assailing the  dismissal of  their  appeals three of  them namely A2, A3 and A4 have filed these appeals which have  been  heard  together  and  this  judgment  will dispose of them. 2.   Briefly stated the prosecution case is as under:- (a)  In the  Waldhuni are  of Kalyan  City the Railway own a number of  buildings, rooms  of which  are allotted  to  its employees. Eknath Brahmane (P.W.4), is one of such employees who was  allotted room  No.7 on the ground floor of Building No. 1003.  That room  was used  by the  two sons  of Eknath, namely, Manohar  and Sanjay as their study; and Eknath along

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with his other family members lived in a nearby chawl; (b)  Two and  a half months prior to the incident with which we are  concerned in  these appeals,  Eknath and  his friend Rajesh were  arrested for attempting to commit the murder of Baksh Jamalkhan  Pathan, brother  of Amir  Jamal Khan Pathan (A1) and,  a week before the incident, they were released on bail. Since the attempt was made to commit the murder of his brother a1 bore a grudge against them. (c)  In the  night of October 20, 1988 Sanjay along with his brother Manohar  and friends  Rajesh, Harshad  and Roml were sleeping in  their study. At or about 3.45 A.M. they woke up on hearing  some noise  from outside  the window  and  found their beds  splashed. They  Immediately got  up and  saw the accused persons  pouring petrol  inside the room through the window. Thereafter they set the room on fire by throwing  an ignited match stick and left bolting the door from outside. (d)  A little  when Kanhayalal,  a regular  milk supplier to the residents  of the  railway quarters,  reached  there  he detected some  fire in  room  No.  7.  He  immediately  sent information to  the family  members of Rajesh and to Eknath. On receiving  that information  they rushed  there and found the  room  locked  from  outside  and  fire  inside.  Eknath unlocked the  room and  saw Sanjay,  Harshad and  Romi lying dead on  the floor of the room and Rajesh and Manohar in the bathroom in  a critical  condition. All  of  them  had  burn injuries on their persons. (e)  Eknath immediately  reported the incident to the Police Station over  telephone and  arranged to  send  Manohar  and Rajesh to  Ulhasnager Central  hospital.  On  receiving  the telephonic message  Inspector Nanavade  reached the spot and having learnt  that the  condition of Manohar and Rajesh was deteriorating issued direction to S.I. Tulshiram (P.W.20) to get their  statements recorded  by a  Magistrate. Service of Dr. Prem  Narayan Talareja  (P.W.16),  a  Special  Executive Magistrate, were  accordingly requisitioned.  He went to the hospital and  record their  statements (Exh.  59 and  60). A formal complaint of Rajesh was also recorded by S.I. Shripat Malache (P.W.20)  and on  that complaint Police registered a case and  took up  the investigation.  As the  condition  of Manohar and  Rajesh was  serious, they  were transferred  to K.E.M. Hospital, Bombay where the former died on October 26, 1988, and  the later  on the following day. On completion of investigation  police  submitted  charge-sheet  and  in  due course that case was committed to the Court of Session. 3.   At the  outset, we  may point  out that the prosecution case, to  the extent it sought to prove that the above named five boys  were set  on fire while they were sleeping inside room No.  7 of  Railway building  No. 1003 and that owing to burn injuries  they met  with their  death stands  proved by overwhelming evidence  on record.  Since, this  part of  the prosecution case  was not  challenged by the accused persons in the  Courts below  we need  not  detail  or  discuss  the evidence adduced in proof thereof. 4.   To prove  that the  three appellants  before us, namely Balu @  Janardan  Shantaram  Shirke  (A2)  Shabbir  Mohammed Sayyed (A3) and Abdul Razak Hussein Pathan (A4) were amongst the  miscreants   who  perpetrated  the  ghastly  crime  the prosecution relied solely upon the two dying declarations of manohar and  Rajesh which  recorded by  P.W.16.  Some  other circumstantial evidence was also pressed into service by the prosecution to  sustain the charges against A1 and A5 but as they have  not preferred  any appeal  we need not detail the same.  Both   the  Courts   below  found   that  the   dying declarations  were   properly  recorded   and  that  it  was

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absolutely safe to make them the sole basis of conviction 5.   To appreciate  the comments made by the learned counsel for the  appellants against  reception of  and reliance upon the dying  declarations we  may first  refer to the evidence laid by  the  prosecution  in  proof  thereof.  Dr.  Gaikwad (P.W.15), in  whose presence  the  dying  declarations  were recorded, testified  that he  was on  duty  in  the  Central Hospital, Ulhasnagar  from 9  P.M. on  October 21, 1988 to 9 A.M. on  the following day. At or about 5 A.M. (I.e. October 21, 1988)  Manohar Bramhane  and Baba  were brought  to  the hospital by  constable  Chundrate  of  Mahatma  Phule  Chowk Police Station,  Kalyan. On  their examination he found that both of  them had burn injuries: the extent of such injuries were 40%  and 50%  respectively. After  preparing their case papers (Exts.  57 and 58 respectively) and admitting them in the hospital,  he sent  information to  the police.  Act  or about 6.30  A.M. a  Police Inspector and a Special Executive Magistrate (P.W.16) came to the hospital and enquired of him about the  condition of  the patients.  He then examined the level of  t heir  consciousness by  asking their  names  and ages, we  brought them  to the  hospital and  as to what had happened to  them. He  found that  they were  able  to  make statements and,  accordingly he  made identical endorsements in  the  margin  of  the  two  papers  in  which  the  dying declarations were  to be  recorded (Exts.  59 and  60).  The endorsements made by him in the margin reads as under;      "Patient is  conscious and  able to      give statement. 6.   He  next   deposed  that   after  he   made  the  above endorsements certifying  the conditions  of the patients the Special Executive  Magistrate  got  the  dying  declarations recorded, one  after the  other, by  a constable  who was on hospital duty.  The Special  executive  Magistrate  put  the questions to  the patients  and answers  given by  them were recorded by  the police  constable in  ‘Marathi’. After  the dying declarations  were recorded  the  patients  put  their signatures on  their respective  dying declarations. Then he (P.W.15) again  examined the  patients and  found that  they were conscious.  Accordingly he made another endorsements on the dying declarations which reads as under:-      "Patients is  conscious and able to      give statement  and was  to through      out his statement which is taken in      my presence." 7.   In this  testimony Dr.  Prem Narayan  Talareja (P.W.6), the Special  Executive  Magistrate,  stated  that  on  being requested by  the Sub-Inspector  of Police  he went  to  the hospital at  6.45 A.M..  to record dying declarations of two persons. Reaching  there he  met Dr.  Gaikwad  (P.W.15)  and enquired of  him about the patients and further asked him to verify whether  those patients  were in  a position  to give statements. Accompanied  by the  doctor  he  then  went  and reached the  patients’ beside  Dr. Gaikwad examined both the patients by  putting certain questions and they were replied correctly. Accordingly  Dr. Gaikwad  made endorsements about the condition  of the  patients on  two papers and he handed over that  to him. On being satisfied about their health, he requested the  doctor to  call the  police constable who was then on  hospital duty to write down the declarations of the patients as he (P.W.16) could not write ‘Marathi’, though he could speak  and follow  that language.  After the constable was  brought   he  (P.W.16)  started  putting  questions  in ‘Marathi’, first to Manohar and the answers give by him were written  down   by  the  constable.  He  followed  the  same procedure in respect of the other patient. On perusal of the

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evidence of the doctor and the Special Executive Magistrate, we find that they corroborated each other and their evidence clearly establishes  that both the declarants were conscious and able to make statements. There is nothing on record also to indicate as to why they would depose falsely. 8.   That brings  us to  the contents  of the  two documents (Exts. 59  and 60).  Both the  declarants were  first  asked about  their   name,  address,  age,  occupation  and  their residence. Thereafter  each of them was asked as to how they received the  burn injuries.  In answer thereto Manohar told that he  along with  Romeo, Harshad, Sanjay and Rajesh slept in room No. 7 of building No. 1003 on October 20, 1988 at or about 10.30  P.M. In  the following  morning at  about  3.45 hours he  heard the noise of the window and got up. He found some cold  liquid falling  on his  body. At that time he saw the following  persons standing  in front of the window; (i) Amir Pathan  residing  at  Waldhuni,  (ii)  Richard  Philips residing at  Waldhuni, (iii)  Baba, brother  of Lambu Yusuf, residing at  Machhibazar (iv)  Sabir, brother  of Babadu and (V) Baba  Shirke residing  at  Kalyan  Rambaug.  They  threw petrol through the window of the room which fell on his body as also  on the  bodies of  others. He  was lastly by P.W.16 what was  the reason for burning them. The answer of Manohar to that  was that  Amir told them that you people had killed my brother  Mohamad and  hence I  will not  keep you  alive. Manohar further  stated that  the above  persons were  angry about the assault on Mohamad Pathan and hence they conspired together to throw petrol on them. He lastly stated that Amir latched the  room from outside and set the fire in the room. As a  result, Romeo,  Harshad and  Sanjay died  on the spot, while they were taken to the hospital. The statement made by Rajesh is  in  conformity  with  and  corroborates  that  of Manohar so far as the manner of setting them of fire as also the names of the miscreants. 9.   In  assailing  the  dying  declaration,  it  was  first submitted on  behalf of  the appellants that P.W.16 admitted that he  was no authorised to record a dying declaration and hence the Courts below ought not to have placed any reliance upon them.  This contention  has to  be stated  only  to  be rejected firstly,  because, our attention has not been drawn to any  Rules which  require  that  without  empowerment  in Executive Magistrate  cannot  record  a  dying  declaration; secondly, because, even if there is any such Rule absence of such power  does not  in any  way undermine  the  status  of P.W.16 as an Executive Magistrate; thirdly, because there is uncontroverted evidence  on record  that  no  other  Special Executive Magistrate  was readily available for the purpose; and lastly  because there  is no  requirement of  law that a dying declaration  must necessarily be made to a Magistrate. It appears  that the above contention was raised before both the Courts  below, and  it was  negatived  in  view  of  the evidence on record and relying on the following passage from judgment of  this Court  in Ramawati Devi Vs. State of Bihar [A.I.R. 1983 S.C. 164]:      "A statement, written or oral, made      by a  person who  is dead as to the      cause of  his death or as to any of      the    circumstances     of     the      transaction which  resulted in  his      death, in  cases in which the cause      of that  person’s death  comes into      question, becomes  admissible under      Section 32  of  the  Evidence  Act.      Such statement made by the deceased      is   commonly   termed   as   dying

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    declaration.    There     is     no      requirement  of  law  that  such  a      statement must  necessarily be made      to a  Magistrate. What  evidentiary      value or  weight has to be attached      to such statement, must necessarily      depend    on    the    facts    and      circumstances  of  each  particular      case, In  a proper  case, it may be      permissible  to  convict  a  person      only  on   the  basis  of  a  dying      declaration in  the  light  of  the      facts  and   circumstances  of  the      case." 10.  It was  next contended  that as  the dying  declaration were not  made by  the two victims at the earliest available opportunity the  possibility of  their being  the outcome of tutoring by  interested parties  could not  be  excluded  in elaborating this  contention it  was submitted that prior to the recording  of the  dying declarations by the Magistrate, the victims were questioned by the Investigating Officers as also by  Dr. Gaikwad  (P.W.15), but before them they did not mention the names of the miscreants. This connection is also without any  substance. From  the evidence  it appears  that both of  them were  rushed to  the hospital  in  a  critical condition  and   immediate   steps   were   taken   by   the Investigation Officer to record their statements in details. So far  as the doctor is concerned, we heave already noticed that  it   was  only  after  the  Magistrate  came  that  he ascertained whether  the patients  were  able  to  make  any statement. In  or considered  opinion the circumstance which clearly  negates  an  inference  that  the  statements  were tutored to implicate the appellants falsely is that there is nothing on  record to suggest that either of the two victims or any  member of  their family had any axe to grind against them (the  appellants). This  apart,  considering  the  time when, and  the manner  in which,  the incident took place no person,  other   than  the  victims  could  have  known  the miscreants and,  therefore, the question of furnishing their names by others could not have arisen. 11.  On behalf  of the appellants our attention was drawn to the  cross-examination   of  P.W.15,   where   he   started, interalia, that  one of  the patients  disclosed his name as ‘Rajesh’ at  the time of recording of his dying declaration, but earlier  when his name was asked for filling in his case papers (Ext.  58) he  gave his  name as  ‘Baba Tike’. P.W.15 further stated  that when  two names were stated by the same person he  (P.W.15) felt  that the  said  patient  might  be hallucinating. According  to the learned counsel, in view of the above  answers given  by the doctor it must be said that the  patient   was  not  in  a  position  to  make  a  dying declaration  and   that  whatever   he  told   was  due   to hallucination.  This   contention  also   does   not   merit acceptance for  the dying  declaration of Rajesh corroborate in all  material particulars  with that of Manohar including the names  of the  miscreants which necessarily mean that at the time  his dying declaration was recorded Rajesh was in a proper frame  of mind, even if earlier he was not so. Having given our  anxious  consideration  to  the  entire  evidence relating to  the dying  declarations,  we  are  in  complete agreement with the Courts below that they can be safely made the basis of conviction. 12.  The only  other question that remains to be answered is whether from  the above dying declarations the identities of the three appellants as the miscreants has been properly and

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correctly established.  It was  submitted on  behalf of  the appellants that  from the  vague and  cryptic description of the miscreants  given in  the dying declaration it could not be said  that three  of them  mentioned therein unmistakably referred  to   the  appellants.   As  earlier  noticed,  the prosecution sought  to establish that of the five miscreants named in  the dying declarations Balu shirke referred to A2, Shabir to  A3 and Baba (Lambu Yusuf’s brother) to A4. Having considered the  evidence relating  to  this  aspect  of  the matter we  are of the view that identifications of A2 and A3 stand fully  established but not that of A4. So far as A2 is concerned, apart  from his  name is  place of  residence was stated  in  the  dying  declarations  and  he  was  arrested therefrom.  Indeed,   during  the  trial  it  was  not  even suggested that  he was not a resident of the place mentioned in the dying declaration. So far as A3 in concerned, we find that in  his examination  under Section  313 Cr.P.C. when he was told that he was described as brother of Babdu he denied the same.  Relying upon  the above  answer it  was submitted before us  that in  absence of  any other  evidence to prove that ‘Shabir’  mentioned in  the dying declarations referred to  A3   his  identity  could  not  be  said  to  have  been established. We do not find any substance in this contention for it  was decided  in cross-examination of P.W.21 that the address of  A3 as  given in  the charge-sheet  was  his  own house. It was also elicited from him that A3 was the brother of Babadu.  There cannot  be any manner of doubt, therefore, regarding the identify of A3. As regards A4 he was sought to be identified  with reference to his having a brother by the name ‘Lambu’  Yusuf. When  his identification  on the  basis thereof was assailed before the trial Court, it wrongly took note of the fact that he was described as ‘Lambu’ and since, according to  the trial  Court, he was the tallest among the persons who  were facing  the trial it concluded that he was correctly identified.  The conclusion  drawn  by  the  trial Court is  not only factually incorrect but also presumptive. A4 is therefore entitled to the benefit of reasonable doubt. 13.  For  the  foregoing  discussion,  we  dismiss  Criminal Appeal Nos.  1136 and  1137  of  1995  preferred  by  Shabir Mohamad Syed (A3) and Balu @ Janardhan Shantaram Shirke (A2) respectively and  allow Criminal  Appeal  No.  615  of  1997 preferred by  Abdul Razak Hussain (A4). A4 who is in jail be released forthwith  unless wanted  in connection  with  some other case.